The Judicial Conduct Commissioner is still conducting a preliminary inquiry into Justice Bill Wilson. The important judgment may get delivered in the court of public opinion

This is my third post on the contretemps involving Supreme Court Justice Bill Wilson (my first two posts on it are here and here, with a summary of the matter here for those unfamiliar with its background). I concluded my last installment on this issue with the statement:

In drawing attention to how judges may eventually get sacked, I in no way mean to imply that this is likely in Justice Bill Wilson's case. For one thing, I suspect (and certainly hope) that the issue will not be deemed serious enough to warrant a Judicial Conduct Panel being established.

While the part of me that trusts in the basic decency of members of the New Zealand judiciary hopes that the Judicial Conduct Commissioner is still able to reach that conclusion on the evidence put before him, recent media stories are causing the rest of me to suspect that he won't. Furthermore, the media drumbeats are growing so loud that it's becoming hard to see how Justice Wilson can survive in office if he receives anything less than a full exoneration from the Commissioner's preliminary inquiry.

However, before I get to recent developments directly involving Justice Wilson, there's a parallel story I'd like to say something about. A "wool grower" (the contemporary or PC term, I guess, for what simply used to be called sheep farmers) has claimed that his local National MP, Colin King, fobbed off his attempt to get Attorney-General Chris Finlayson to take action against Justice Wilson by claiming Finlayson had stated "Justice Wilson is a mate of mine and there's no way I am pursuing this any further".

Both Finlayson and King deny vehemently that Finlayson made any such statement. I believe them. Here's why.

First of all, anyone who has spent any time talking with Finlayson will have real trouble placing the asserted statement in his mouth. Even allowing for some degree of paraphrasing, I can't imagine such an inelegant term as "a mate of mine" passing his lips.

Second, and more importantly, Finlayson is something of a stickler for proper procedure. Or, to put it another way, he genuinely believes in the rule of law and the importance of his role as the nation's chief law officer. Look, for example, at his preparedness to attach quite inconvenient and politically embarrassing NZBORA notices to his own government's legislative centerpieces. Even allowing for the ties of friendship, I can't imagine him sacrificing his core personal commitments in the way alleged.

Finally, even if Finlayson were likely to abandon his most basic values to protect his friends, there is just no way he'd be dumb enough to tell anyone else he was doing so. There are multiple other reasons he could cite for inaction without referencing his personal relationship with Justice Wilson. Even allowing for the fact that clever people still can say silly things, I can't imagine any politician being so stupid as to admit explicitly to a colleague that they were putting personal ties above their public duty.

So much for that particular red herring. However, of greater importance is a second story in the media about a complaint made to the Judicial Conduct Commissioner against Justice Wilson by a retired Supreme Court Justice, Sir Ted Thomas. Saturday's NZ Herald had two long stories about it, which the Dominion Post also has picked up.

Sir Ted Thomas' complaint rests on the same ground as the original one leveled against Justice Wilson - that he failed to disclose the full extent of his business relationship with a lawyer, Alan Galbraith QC, who appeared before him in a case. However, it expands upon that original allegation in two significant ways.

First, Sir Ted Thomas alleges that Justice Wilson made up stories in an effort to keep his true financial relationship with Galbraith hidden even after his colleagues on the Supreme Court sought information about it. In other words, his failure to disclose could not have been inadvertent or due to some misunderstanding of the relevant law, but only deliberate and intended to deceive his colleagues.

Sir Ted Thomas also alleges that Justice Wilson sat on more than one case in which Galbraith appeared before him without disclosing to the other side that he had a potential conflict of interest. In other words, the failure to disclose was systemic and potentially threatens the administration of justice in a number of cases.

If true, these allegations are pretty damning. And their source - one of New Zealand's senior judges, who has thought long and hard about the project of judging - requires that they be treated with some respect. But before we write off Justice Wilson completely, a note of caution needs to be struck.

Sir Ted Thomas' complaint primarily rests on claims about what he says various lawyers and judges have told him about Justice Wilson's words and actions, and his account of what others think of that behaviour. In legal parlance, this sort of evidence is called "hearsay", and it is generally regarded as being of dubious value because; "the original speaker could have been misquoted, either accidentally or intentionally. Furthermore, the listener, being at least one step removed from the original speaker, cannot witness his or her mannerisms, voice inflections or body language and thus cannot judge the original speaker's credibility. This inherent tendency for unreliability is one reason why hearsay is generally excluded from evidence in civil and criminal trials."

So unless the quoted lawyers and judges corroborate Sir Ted Thomas' account of his conversations with them, it will be difficult to accept his claims about what was said over Justice Wilson's denials. It may or may not be relevant here that none of the sources that Sir Ted Thomas cites in his complaint have laid their own independent complaints about Justice Wilson's behaviour, nor did they put their names to Sir Ted Thomas' complaint.

Nevertheless, the very fact these allegations have been aired in public is beginning to poison the atmosphere in which Justice Wilson must sit. Indeed, one might wonder whether the extensive coverage given to Sir Ted Thomas' complaint makes a self-fulfilling prophecy of his statement in it that: "The matter would eventually break in the media and become public knowledge. If Justice Wilson did not resign, he would be hounded by the media and forced to resign."

Evidence of that poisoning can be seen in the Dominion Post's editorial, which opines: "At the very least Justice Wilson should have stepped aside from his duties, when the case was referred to the judicial commissioner. When he did not do so, Chief Justice Dame Sian Elias should have stood him down." I happen to think this is an unworkable standard to apply - anyone can complain to the Commissioner about a judge, and there's just no way the courts could function if that judge then has to stand aside until the complaint is resolved. But the fact a newspaper is propounding it in Justice Wilson's case is indicative of where opinion is shifting with respect to his case.

I think that a lot now hinges on what the Judicial Conduct Commissioner decides to do at the end of his preliminary inquiry. He may conclude that the whole issue has been a terrible misunderstanding, and throw it back to the Chief Justice to slap Justice Wilson's wrist and counsel caution in the future.

But this outcome seems a lot less likely following Sir Ted Thomas' intervention. He's made some very serious claims, using the names of some of New Zealand's leading legal figures to buttress them. For the Judicial Conduct Commissioner to discount those claims without having them fully investigated in the public light of a Judicial Conduct Panel would be ... how can I put this ... courageous in the extreme.

However, the very decision to recommend that a Judicial Conduct Panel is required would deeply undermine Justice Wilson's position. Judges - especially those at the very top of the legal hierarchy - are required to abide by the standards of Caesar's Wife. Even a preliminary finding that there may have been wrongdoing sufficient to justify his or her sacking surely makes his or her continued presence on the bench exceedingly hard to defend.

All of which may seem a little unfair. After all, even judges should be entitled to due process and the observation of natural justice when accused of wrongdoing. But the judgment that really matters may be the one delivered in the court of public opinion. And that is a forum where justice can be an exceedingly rare virtue.

 

 

Comments (14)

by Graeme Edgeler on April 14, 2010
Graeme Edgeler

"...When he did not do so, Chief Justice Dame Sian Elias should have stood him down." I happen to think this is an unworkable standard to apply...

And I think it an illegal standard to apply, so I guess we get to the same place. The Chief Justice would get the power to forcibly stand a Supreme Court Judge down from where, exactly?

by Andrew Geddis on April 14, 2010
Andrew Geddis

Interesting question, Graeme. How far does the Chief Justice's administrative responsibility as Head of Bench of the Supreme Court stretch? Could she, in effect, roster off Justice Wilson (i.e. not formally "stand him down" - but simply not include him in the team that hears cases)? Because you are quite right about there being no formal legal power to suspend him from office.

by Tim Watkin on April 14, 2010
Tim Watkin

So if not the Chief justice, who does have the power? If a conflict of interest complaint hangs over a justice, then it does risk undermining the court and taint any judgment he (or she) is involved in. If the justice involved doesn't see this and doesn't act himself or herself, who can step in?

And Andrew, you spell out the dilemma very well, and it's a critical balance of fairness that the commissioner must weigh when it comes to deciding whether to recommend a panel. If it's not fair to Wilson, then nothing should happen.

But if the questions remain then I'm left concluding that ultimately the reputation of the court has to be more important than the reputation of one man.

by Graeme Edgeler on April 14, 2010
Graeme Edgeler

Could she, in effect, roster off Justice Wilson (i.e. not formally "stand him down" - but simply not include him in the team that hears cases)?

Not at present, no. The Supreme Court Act creates a court of five or six Judges (s 17). There have pretty much always been five, and there are currently five. When the Court  hears a substantive matter, it sits with five judges (s 27). There is a process for Acting Judges to be appointed to sit on cases (s 23), if five permanent judges are unavailable (vacancy, illness, not in the country, conflict of interest, etc.), but Acting Judges cannot be appointed to a case unless such an unavailability occurs (s 23(5)).

So if not the Chief justice, who does have the power? If a conflict of interest complaint hangs over a justice, then it does risk undermining the court and taint any judgment he (or she) is involved in. If the justice involved doesn't see this and doesn't act himself or herself, who can step in?

I would argue the Court, but only on a case by case basis. The Court has the power to decide whether a particular judge should hear a particular case. Justice Hammond (Court of Appeal) has recently published a monograph (I think ... what is a monograph ... let's say 'short book') on Judicial Recusal. The process he suggests should be adopted (which is not adopted in New Zealand, but could be, and probably is on occasion) is that the other judges would decide whether it was appropriate for the Judge to sit.

In the Supreme Court, this could be done by a single judge (s 28), which the CJ could decide was herself, but it would have to be done case by case.

by Andrew Geddis on April 14, 2010
Andrew Geddis

Tim,

Absolutely, the Commissioner's job is to decide whether the prima facie evidence supports an allegation that, if proved, could lead to a Judge's removal. If so, his job is to recommend a Judicial Conduct Panel be established to fully examine the matter in public. The relevant section is 18(1):

"The Commissioner may recommend to the Attorney-General that he or she appoint a Judicial Conduct Panel to inquire into any matter or matters concerning the alleged conduct of a Judge if the Commissioner is of the opinion that—

(a) an inquiry into the alleged conduct is necessary or justified, and

(b) and if established, the conduct may warrant consideration of removal of the judge."

The fact that any such recommendation might result in the Judge resigning (i.e. becoming the victim of a media sh*tstorm) cannot override the Commissioner's primary duty.

by Graeme Edgeler on April 14, 2010
Graeme Edgeler

the Commissioner's job is to decide whether the prima facie evidence supports an allegation that, if proved, could lead to a Judge's removal. If so, his job is to recommend a Judicial Conduct Panel be established to fully examine the matter in public.

Closely reading this for the first time, I see that there is a discretion: even if satisfied that an inquiry into the alleged conduct is necessary or justified, and satisfied that the allegation if established, may warrant consideration of removal of the judge ... the Commissioner may recommend the A-G appoint a panel. He doesn't have to.

by Matthew Morgan on April 15, 2010
Matthew Morgan

Has it come up at all in any of the coverage thus far that Justice Wilson's appointment to the bench raised eyebrows?

He, I think, appeared for the Crown against Mr Zaoui.

Then he was appointed directly to the Court of Appeal and then to the Supreme Court roughly 15 seconds after that.

I have it from good sources that he was sitting in Whangarei hearing jury trials whilst on the Court of Appeal because he had no trial experience as a judge.

 

by Andrew Geddis on April 16, 2010
Andrew Geddis

Matthew,
He was a lawyer - a Queen's Counsel, no less - so he'll have represented a wide range of clients prior to his appointment. I have no idea if one of those clients was the Crown in the Zaoui case, but don't really see the relevance. After all, even William Bell and Anthony Dixon get lawyers, too!

As for the speed of his rise to the Supreme Court - yes, it was remarkably fast. A reason, I think, was a desire to have more commercial law experience on the bench. Whether that rapid rise meant he missed out on some desirable experience at the lower levels of the judiciary is, prehaps, a moot point.

by Graeme Edgeler on April 16, 2010
Graeme Edgeler

Speaking of Queen's Counsel ... have we any idea why Mr Galbraith didn't just pipe up in the Court of Appeal when he saw Justice Wilson was sitting? It came out that there had been some business dealings, and no-one objected, but if either of the two who knew the likely indebtedness had spoken up, and added this additional information, they might have avoided this whole thing.

by Andrew Geddis on April 16, 2010
Andrew Geddis

Graeme,

Or indeed in any of the other four cases Sir Ted claims
Galbraith appeared in before Wilson whilst indebted!

I guess the onus is on the Judge to declare potential conflicts/make the decision on whether to recuse or not? After all, Galbraith has a duty to represent his client, and surely this means he can't step down from a case because he thinks the judge ought not to be sitting? But does his duty to the court include making sure that the presiding judge makes all the appropriate disclosures?

Sounds like an exam problem for a legal ethics course!

by Graeme Edgeler on April 16, 2010
Graeme Edgeler

does his duty to the court include making sure that the presiding judge makes all the appropriate disclosures?

Not just the duty to the Court ... the failure to sort this out early has meant the client has faced the expense of two additional hearings in the Supreme Court, and a full re-hearing in the Court of Appeal.

by Andrew Geddis on April 16, 2010
Andrew Geddis

True. But do we conclude that ...

(1) Galbraith's actions are evidence no-one really knew the proper standards for judicial recusal (until the S.Ct laid it out in the first Saxmere decision);

(2) Galbraith knew that Wilson shouldn't have been sitting, but decided to carry on irregardless?

by Matthew Morgan on April 17, 2010
Matthew Morgan

Andrew,

My point was that it might have caused resentment and that is why the knives are out.  The rise was more than merely rapid.  The descent could be likewise.  Surely getting massive briefs from the Crown could have some influence on securing a politcal appointment such as one direclty to the Court of Appeal and the immediately to the Supreme Court?

A lack of commercial experience on the Supreme Court?  Are the rest of them family lawyers or something?

Anthony Dixon didn't get a silk, mind you since they don't really tend to take criminal law briefs out of a sense of public service in this country as they do elsewhere.

 

 

 

Post new comment

You must be logged in to post a comment.